Beyond Windrush

The Windrush scandal has put the spotlight on the byzantine and troubled state of British immigration law, policy and practice, writes Dr Anna Lindley

A good deal of the coverage of the Windrush scandal has viewed it as an anomaly – mobilising the familiar dichotomy of ‘good citizens’ mistreated by accident, in an immigration system designed to exclude, detain and remove ‘illegal migrants’. But the experiences of the Windrush generation highlight a series of wider problems with the UK immigration system – many of which were evident in the accounts of legal professionals I interviewed last year regarding immigration detention. This scandal has put the spotlight on the byzantine and troubled state of British immigration law, policy and practice.

Policy targets and a culture of disbelief

Since 2010, successive governments have insisted on a crude policy target of reducing net migration to under 100,000 – a policy roundly critiqued by migration policy experts, citing the nature of demand for migrant labour and human rights obligations. A byzantine landscape of legislation and policy guidance exists which has increasingly complicated the process of obtaining permission to enter, live and work in the UK; created a hostile domestic environment where people are obliged to verify their immigration status in the course of everyday life; reduced appeal rights and pushed to enforce removal.

A culture of disbelief in the Home Office is well-documented, with casework practices criticised by a series of official inquiries, inspection reports and key professional bodies. Around 50% of immigration and asylum appeals are upheld, a damning indictment of the quality of public decision-making. Despite the fact that administrative detention is supposed to be used ‘sparingly’, some 27,331 people were incarcerated during 2017. Numerous unlawful detention claims are upheld. The human and financial costs are considerable.

Efforts to pursue removals appear to have become increasingly aggressive, extending to groups of people previously less affected. The hostile environment has required many long-term residents to reach for their paperwork. Many, like the Windrush generation, have run into difficulties confirming their right to live and work in the UK. EU nationals have risen from 2% to 18% of the detained population since 2013, with concerted efforts to remove those in more economically precarious situations (including by liaising with homeless charities to identify rough sleepers). Recent news reports suggest that the Home Office is now refusing Indefinite Leave to Remain to highly skilled workers under a section of the Immigration Rules designed to tackle criminals and those judged to be a threat to national security, based on what appear to be deliberate mis-readings of their tax records.

Uneven playing field

Information is a key factor in a successful challenge to Home Office refusals, and it is an uneven playing field. The Home Office requirement that the Windrush generation provided official correspondence from over 40 years ago and its own destruction of Windrush landing cards was consistent with a simultaneously demanding and cavalier approach to migrant paperwork. The Home Office has sought to mine data collected by health and education providers for enforcement purposes, yet caseworkers often dismiss expert medical evidence of torture and immigration files have been lost – temporarily and permanently – in the system with serious implications for the individuals involved. The inequality of arms on information could get worse, and soon: if passed, the Data Protection Bill 2017-19 will allow the Home Office to refuse people access to the personal data it holds on them, which was a vital tool in challenging poor administrative decisions and practices.

LASPO effect

All this underlines the complexity and changing nature of immigration law and policy landscape, and the importance of early professional legal advice, which many people of low or moderate means struggle or fail to obtain. The government claimed many immigration processes were straightforward and easy to navigate, so people should be able to deal with them without a lawyer. Measures introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 dramatically cut legal aid for immigration: by 2017, matters started with public funding were around one-third in number and half of the value of levels immediately prior to LASPO. Parts of the country are effectively legal aid deserts. Add to this the escalation of immigration fees (for example, recently the Free Movement blog flagged the Home Office charging £1,012 to register a child who is entitled to British citizenship, a whacking 63% above the administrative cost) and the picture is bleak. Even in detention, where a free Detention Duty Advice scheme operates in recognition of the gravity of administrative incarceration, our study found that many people struggle to obtain the legal aid they are entitled to, as promptly as they need; use of private and pro-bono services seems to be increasing; and there are regularly people who face the Home Office in court without any legal representation.

"Despite the fact that administrative detention is supposed to be used ‘sparingly’, some 27,331 people were incarcerated during 2017"

While the Windrush generation easily captured public and political imagination as deserving members of society, the processes that they have been subject to are characteristic of a system of immigration control that is geared towards refusal and removal, which affects many people with legitimate claims to live and work in the UK. This disrupts not only the lives of the individuals who are disbelieved and subject to detention and removal, but their families, communities, and workplaces. Windrush is not an anomaly, and this is not something that can be fixed with an apology and a hotline.

The Windrush Generation

For many years in the middle of the last century, all citizens of the UK and the Colonies (a status conferred by the British Nationality Act in 1948) were allowed to move anywhere in the UK and Colonies to live and work. In response to labour market demand, many people arrived in the UK, particularly from the Caribbean Commonwealth territories, dubbed the Windrush migrants after the first ship arriving from Jamaica in 1948. They and their children became a key part of British social history and contemporary society.

During the 1960s, many colonies won independence and citizens of Commonwealth countries became progressively subject to immigration controls, with the exception of minors and children of migrant families. The 1971 Immigration Act introduced immigration control for all nationalities, regulating the entry and stay of everyone without right of abode. People already settled in the UK, who had no restriction on their leave on 1 January 1973, were automatically entitled to stay in the UK indefinitely. Thus the children of Windrush migrants who typically at that point had no restriction on their leave to enter or remain, were automatically entitled to settled status.

In the intervening decades, many acquired citizenship. Others acquired proof of status via a No Time Limit (NTL) stamp in their passports, or more recently a NTL biometric residence permit. But many did not, often because they believed they were British, had not found it necessary to prove their status and/or because of financial barriers. Oxford Migration Observatory has estimated that last summer there were some 57,000 people living in the UK who were born in other Commonwealth countries and migrated to the UK before 1971, and did not have UK nationality.

With the Home Office redoubling efforts to achieve its dubious policy targets, these long-term residents have been finding themselves vulnerable to detention and removal, and struggling to have their rights recognised. In order to obtain confirmation of NTL status, applicants were requested to supply official correspondence evidencing their presence in the UK prior to 1973 (over 40 years ago) and of their continuous residence (several sources of government guidance stated since 1973, although this requirement was actually only introduced later). Since 2013 it has been very hard to obtain legal aid for this kind of case. As Colin Yeo pointed out in a blog post, the standard of proof in immigration cases is supposed to be balance of probabilities. However, Amber Rudd stated that this would be the standard going forwards, suggesting that civil servants may have been applying the wrong standard of proof before.

It is unclear how many have been refused paperwork, how many been refused services on grounds of inability to prove status, how many have been subject to detention, how many have been issued with removal notices, and how many have been removed. Although people with connections in Caribbean Commonwealth countries have been at the forefront of coverage, cases have also been reported of people from Kenya, Cyprus and Canada.

Beyond Windrush

A good deal of the coverage of the Windrush scandal has viewed it as an anomaly – mobilising the familiar dichotomy of ‘good citizens’ mistreated by accident, in an immigration system designed to exclude, detain and remove ‘illegal migrants’. But the experiences of the Windrush generation highlight a series of wider problems with the UK immigration system – many of which were evident in the accounts of legal professionals I interviewed last year regarding immigration detention. This scandal has put the spotlight on the byzantine and troubled state of British immigration law, policy and practice.

Policy targets and a culture of disbelief

Since 2010, successive governments have insisted on a crude policy target of reducing net migration to under 100,000 – a policy roundly critiqued by migration policy experts, citing the nature of demand for migrant labour and human rights obligations. A byzantine landscape of legislation and policy guidance exists which has increasingly complicated the process of obtaining permission to enter, live and work in the UK; created a hostile domestic environment where people are obliged to verify their immigration status in the course of everyday life; reduced appeal rights and pushed to enforce removal.

A culture of disbelief in the Home Office is well-documented, with casework practices criticised by a series of official inquiries, inspection reports and key professional bodies. Around 50% of immigration and asylum appeals are upheld, a damning indictment of the quality of public decision-making. Despite the fact that administrative detention is supposed to be used ‘sparingly’, some 27,331 people were incarcerated during 2017. Numerous unlawful detention claims are upheld. The human and financial costs are considerable.

Efforts to pursue removals appear to have become increasingly aggressive, extending to groups of people previously less affected. The hostile environment has required many long-term residents to reach for their paperwork. Many, like the Windrush generation, have run into difficulties confirming their right to live and work in the UK. EU nationals have risen from 2% to 18% of the detained population since 2013, with concerted efforts to remove those in more economically precarious situations (including by liaising with homeless charities to identify rough sleepers). Recent news reports suggest that the Home Office is now refusing Indefinite Leave to Remain to highly skilled workers under a section of the Immigration Rules designed to tackle criminals and those judged to be a threat to national security, based on what appear to be deliberate mis-readings of their tax records.

Uneven playing field

Information is a key factor in a successful challenge to Home Office refusals, and it is an uneven playing field. The Home Office requirement that the Windrush generation provided official correspondence from over 40 years ago and its own destruction of Windrush landing cards was consistent with a simultaneously demanding and cavalier approach to migrant paperwork. The Home Office has sought to mine data collected by health and education providers for enforcement purposes, yet caseworkers often dismiss expert medical evidence of torture and immigration files have been lost – temporarily and permanently – in the system with serious implications for the individuals involved. The inequality of arms on information could get worse, and soon: if passed, the Data Protection Bill 2017-19 will allow the Home Office to refuse people access to the personal data it holds on them, which was a vital tool in challenging poor administrative decisions and practices.

LASPO effect

All this underlines the complexity and changing nature of immigration law and policy landscape, and the importance of early professional legal advice, which many people of low or moderate means struggle or fail to obtain. The government claimed many immigration processes were straightforward and easy to navigate, so people should be able to deal with them without a lawyer. Measures introduced in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 dramatically cut legal aid for immigration: by 2017, matters started with public funding were around one-third in number and half of the value of levels immediately prior to LASPO. Parts of the country are effectively legal aid deserts. Add to this the escalation of immigration fees (for example, recently the Free Movement blog flagged the Home Office charging £1,012 to register a child who is entitled to British citizenship, a whacking 63% above the administrative cost) and the picture is bleak. Even in detention, where a free Detention Duty Advice scheme operates in recognition of the gravity of administrative incarceration, our study found that many people struggle to obtain the legal aid they are entitled to, as promptly as they need; use of private and pro-bono services seems to be increasing; and there are regularly people who face the Home Office in court without any legal representation.

"Despite the fact that administrative detention is supposed to be used ‘sparingly’, some 27,331 people were incarcerated during 2017"

While the Windrush generation easily captured public and political imagination as deserving members of society, the processes that they have been subject to are characteristic of a system of immigration control that is geared towards refusal and removal, which affects many people with legitimate claims to live and work in the UK. This disrupts not only the lives of the individuals who are disbelieved and subject to detention and removal, but their families, communities, and workplaces. Windrush is not an anomaly, and this is not something that can be fixed with an apology and a hotline.

The Windrush Generation

For many years in the middle of the last century, all citizens of the UK and the Colonies (a status conferred by the British Nationality Act in 1948) were allowed to move anywhere in the UK and Colonies to live and work. In response to labour market demand, many people arrived in the UK, particularly from the Caribbean Commonwealth territories, dubbed the Windrush migrants after the first ship arriving from Jamaica in 1948. They and their children became a key part of British social history and contemporary society.

During the 1960s, many colonies won independence and citizens of Commonwealth countries became progressively subject to immigration controls, with the exception of minors and children of migrant families. The 1971 Immigration Act introduced immigration control for all nationalities, regulating the entry and stay of everyone without right of abode. People already settled in the UK, who had no restriction on their leave on 1 January 1973, were automatically entitled to stay in the UK indefinitely. Thus the children of Windrush migrants who typically at that point had no restriction on their leave to enter or remain, were automatically entitled to settled status.

In the intervening decades, many acquired citizenship. Others acquired proof of status via a No Time Limit (NTL) stamp in their passports, or more recently a NTL biometric residence permit. But many did not, often because they believed they were British, had not found it necessary to prove their status and/or because of financial barriers. Oxford Migration Observatory has estimated that last summer there were some 57,000 people living in the UK who were born in other Commonwealth countries and migrated to the UK before 1971, and did not have UK nationality.

With the Home Office redoubling efforts to achieve its dubious policy targets, these long-term residents have been finding themselves vulnerable to detention and removal, and struggling to have their rights recognised. In order to obtain confirmation of NTL status, applicants were requested to supply official correspondence evidencing their presence in the UK prior to 1973 (over 40 years ago) and of their continuous residence (several sources of government guidance stated since 1973, although this requirement was actually only introduced later). Since 2013 it has been very hard to obtain legal aid for this kind of case. As Colin Yeo pointed out in a blog post, the standard of proof in immigration cases is supposed to be balance of probabilities. However, Amber Rudd stated that this would be the standard going forwards, suggesting that civil servants may have been applying the wrong standard of proof before.

It is unclear how many have been refused paperwork, how many been refused services on grounds of inability to prove status, how many have been subject to detention, how many have been issued with removal notices, and how many have been removed. Although people with connections in Caribbean Commonwealth countries have been at the forefront of coverage, cases have also been reported of people from Kenya, Cyprus and Canada.